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ELCAllowedEnvironment & Land Case 114 of 2019· [2023] KEELC 21177 (KLR)

Mutisya & 8 others v Mulemba

Environment and Land Court of Kenya
1 November 2023
COChristine Ochieng
3,053 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court blocked land plaintiffs from withdrawing their case, ruling that you cannot abandon a suit to dodge an opponent's pending applications.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos (Christine Ochieng, J) on the Defendant's Notice of Motion dated 29th March 2023, brought under Order 51 Rule 1, Order 2 Rule 15(c) and (d) and Order 25 Rule 4 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63E of the Civil Procedure Act and Article 159(2) of the Constitution. The Defendant sought to strike out, arrest or suspend the Plaintiffs' Notice to Withdraw the suit dated 15th February 2023 and to bar any subsequent suit on the same cause of action before payment of costs. The Plaintiffs, who had filed an Originating Summons in October 2019 seeking adverse possession of land parcel Matuu/Ikaatini/676, opposed the application, relying on the Supreme Court's decision in Nicholas Kiptoo Arap Korir Salat v IEBC to argue that the right to withdraw is absolute and that all subsequent proceedings were void ab initio. The court framed a single issue: whether the Notice to Withdraw should be struck off. Relying on Beijing Industrial Designing & Research Institute v Lagoon Development Limited and Harry John Paul Arigi v Kenya Ports Authority, and distinguishing Salat, the court held that the right to withdraw is not absolute; the Notice was filed in bad faith during the pendency of an application to stay a parallel Kithimani suit filed by some plaintiffs on the same subject matter, and amounted to an abuse of court process. The application was allowed with costs.

Key legal issues

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Whether the plaintiffs' Notice to Withdraw the suit should be struck off

Holding

The Notice to Withdraw was filed in bad faith and amounted to an abuse of the court process; the court declined to adopt it and allowed the defendant's application.

Reasoning

The plaintiffs filed a similar suit in Kithimani (ELC Misc. No. 7 of 2022) during the pendency of this suit and obtained ex parte orders despite existing injunctions. The Notice to Withdraw was filed after the defendant applied to stay the Kithimani proceedings, indicating an attempt to defeat pending applications and deprive the defendant of the fruits of earlier rulings. The court distinguished Salat, where only one application existed and no parallel suit had been filed.

p. 5

Legal principles established

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  • The right to withdraw a suit is not absolute; where withdrawal is filed to defeat the ends of justice or abuse the court process, the court may decline to adopt the notice.
  • The court has inherent jurisdiction to stop a withdrawal that constitutes abuse of the process of court.

Court orders

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  1. 1.The Notice of Motion dated 29th March 2023 is allowed with costs
  2. 2.The Notice to Withdraw the suit dated 15th February 2023 is not adopted/declined (struck off effect) - the court declined to adopt the Notice to Withdraw the suit

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 2 Rule 15(c) and (d)
  • Civil Procedure Rules, 2010Order 25 Rules 1, 2 and 4
  • Civil Procedure Rules, 2010Order 11
  • Civil Procedure ActSections 1A, 1B, 3A and 63E
  • Constitution of Kenya, 2010Article 159(2)

Cases cited (8)

  • Nicholas Kiptoo Arap Korir Salat vs. IEBC & 7 others, Supreme Court Application No. 16 of 2014

    A party's right to withdraw a matter before court cannot be taken away; distinguished on facts.

  • Beijing Industrial Designing & Research Institute v Lagoon Development Limited
    [2015] eKLR

    Right to discontinue is circumscribed where leave of court is required; leave is not a mere formality.

  • Harry John Paul Arigi & 2 others v Board, Kenya Ports Authority & 2 others
    [2016] eKLR, Malindi Court of Appeal Civil Appeal No. 52 of 2015

    Court has inherent jurisdiction to stop withdrawal constituting abuse of process.

  • Castanho V. Brown & Root (UK) Ltd & Another
    (1981) 1 All ER 143

    Authority for inherent jurisdiction to stop abusive withdrawal, as cited in Beijing Industrial.

  • Republic Vs. The Chief Land Registrar & 2 Others
    ELC Misc. Application No. 66 of 2020
  • Karisa Chengo Nguma Vs. Kache Ruwa Kalama Shida Ali Nguma
    ELC No. 203 of 2017
  • Canyon Properties Limited & 3 Others Vs. Eliud Kipchirchir Bett & 2 Others
    Civil Appeal No. 96 of 2016
  • Stephen Mbugua Mwagiru Vs. The Chief Land Registrar & 7 Others
    Constitutional Petition No. 6 of 2018
Jurisdiction invoked
Environment and Land Court jurisdiction under the Environment and Land Court Act; application brought under Order 51 Rule 1, Order 2 Rule 15(c) and (d), Order 25 Rule 4 of the Civil Procedure Rules 2010, Sections 1A, 1B, 3A and 63E of the Civil Procedure Act and Article 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mutisya & 8 others v Mulemba", Case Analysis (2023). Environment & Land Case 114 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/21177/eng@2023-11-01

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.